Court debates TV expletives

Justices' verbal cartwheels keep dirty case clean

November 05, 2008|By Jerry Markon, The Washington Post

WASHINGTON — It's not every day that a top lawyer for the Bush administration, standing before the black-robed justices of the Supreme Court, invokes the specter of "Big Bird dropping the F-bomb on Sesame Street."

Justices on Tuesday heard arguments on a new government policy that can punish television networks for a one-time, or "fleeting" expletive, as opposed to a stream of profanities. The case came about after singer Cher dismissed her critics with an expletive during a live 2002 awards show, and celebrity Nicole Richie used some in 2003.

The argument began with the typically sober discussion of weighty legal issues. But the lawyers were soon jumping through verbal hoops to avoid saying the words at issue, trying everything from "these words" to expletives, swearing, the F-word, the F-bomb and "freaking."

Chief Justice John Roberts debated with a lawyer for Fox network, which aired the Cher and Richie remarks, whether such words inherently denote offensive "sexual or excretory activities" -- the definition the Federal Communications Commission's used to cite Fox for broadcasting indecent material.

Roberts asked, "Why do you think the F-word has" such power? "... Because it's associated with sexual or excretory activity. That's what gives it its force."

The tension in the crowded courtroom gave way to laughter when 88-year-old Justice John Paul Stevens asked whether the FCC would sanction a broadcaster if the indecent remark "was really funny." Solicitor General Gregory Garre said it might depend on the context.

Stevens also asked whether the word "dung" would be indecent (Garre said probably not) and Justice Stephen Breyer added that during live television "you're dealing with a cross section of humanity, and my experience is that some sections of that cross section swear."

The issue heated up after the split-second television exposure of singer Janet Jackson's breast during the 2004 Super Bowl halftime show.

Hundreds of thousands of viewers complained, prompting the FCC to change a long-standing policy that punished only repeated use of on-air expletives. It made clear that future "fleeting," or one-time, use of obscenities could be punished.

Fox filed suit, arguing that the FCC's policy change violated the broadcaster's First Amendment rights. A federal appeals court in New York agreed, issuing a 2-1 decision last year that broadly questioned whether the FCC still has the right to police the airwaves for offensive language. The FCC has no authority over cable and satellite radio and TV.

It was not clear when the court would rule.

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A supreme opportunity

Court could shift significantly after the election: chicagotribune.com/supreme